National Credit Union Administration Board v. U.S. Bank National Association

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LECTRONICALLY FILED!

April 12, 2023 | DOC 2; □

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Honorable Louis L. syle te LED: alia 3 □ 4

United States Distri¢t‘Court, S.D.N.Y. SSS

500 Pearl Street, Room 1010

New York, NY 10007

Re: NCUA, et al. v. US. Bank N_A., No. 18-cv-11366 (11s)

Dear Judge Stanton:

We represent the National Credit Union Administration Board, as liquidating agent for

certain corporate credit unions (“NCUA”), in the above-referenced action. We write in response

to the Court’s March 29, 2023 order regarding NCUA’s request to seal certain summary

judgment exhibits (the “Order’).

1. NCUA Withdraws Its Request to Seal for Most Exhibits

Pursuant to the Order and upon further review, NCUA will no longer to seek to seal the

following previously sealed summary judgment exhibits: 1) Exhibits 100, 110, 120, and 123 to

the Declaration of John A. Libra submitted with Plaintiffs’ Motion for Partial Summary

Judgment on March 15, 2022 (ECF Nos. 176-179); and 2) Exhibits 198, 292, 318, 319, 320, 323,

and 327-346 to the Declaration of John A. Libra submitted with Plaintiffs’ Opposition to U.S

Bank’s Motion for Summary Judgment on March 15, 2022 (ECF Nos. 165-168).' NCUA will

file new supplemental declarations for each motion with these exhibits.

Il. NCUA Renews Its Motion to Seal for Four Exhibits

NCUA renews its motion seeking the Court's permission to file Exhibits 96, 98, 101, and

104 to the Declaration of John A. Libra submitted with Plaintiffs’ Motion for Partial Summary (es

Judgment on March 15, 2022 ina partially redacted form to remove nonpublic personal □□

information (the “At-Issue Exhibits”). NCUA’s supplemental declaration for Plaintiffs’ Motion ba □

for Partial Summary Judgment will include redacted versions of these exhibits and NCUA will

also file under seal unredacted versions that show the proposed redactions in red font to highlight Au

the proposed redactions. as

Courts enjoy “considerable discretion in determining whether good cause exists to □□□□

overcome the presumption of open access to documents.” Geller v. Branic Int'l Reality Co., 212

F.3d 734, 738 (2d Cir. 2000). In considering whether to allow parties to file documents under Up

seal, the Court must determine whether the interest in public access to the documents outweighs □□□

' Libra Exhibits 120 and 292 are documents U.S. Bank had requested be filed under seal. □□ \ 1

For these exhibits, NCUA requested U.S. Bank’s position on sealing them in light of the Order,

and U.S. Bank agreed that NCUA need not pursue sealing.

Honorable Louis L. Stanton

April 12, 2023

Page 2

the privacy interests of the party seeking to file the documents under seal. See Lugoseh v

Pyramid Co. of Onodonaga, 435 F.3d 110, 119-20 (2d Cir. 2006). Specifically with respect to

personal financial information, courts have found such information private and granted motions

to seal. See Strauss v. Credit Lyonnais, S.A., No. 06-cv-702, 2011 WL 4736359, at *4 (E.D.NLY.

2011) (Both financial records and certain reports by banks to government authorities have

historically not been subject to public access in the United States”); United States Sec. & Exch.

Comm'n v. Ahmed, No, 15-cv-675, 2018 WL 4266079, at *2 (D. Conn. 2018) (*[F]inancial

records ,.. are among those privacy interests which may support sealing of documents.)

(internal quotations omitted); Lytle v. JPMorgan Chase, 810 F. Supp. 2d 616, 629 (S.D.N.Y.

2011) (listing “sensitive personal financial information” as a category of financial information

that is sufficient to overcome the presumption of public access) (citations omitted).

The Gramm-Leach Bliley Act (“Gramm-Leach-Bliley”) requires that, as a general rule,

“financial institution[s] [] not disclose nonpublic personal information to a nonaffiliated third

party.” Gramm-Leach-Bliley, § 502 (b}(1), 15 U.S.C. § 6802(b)(1). Likewise, federal courts

recognize the need to protect the personal identifiable information of non-affiliated third parties.

See Dodona I, LLC v. Goldman, Sachs & Co., 119 F. Supp. 3d 152, 156 (S.D.N.Y, 2015)

(allowing redaction of information relating to “‘customer names, account numbers, and pricing

information’); see also SOHC, Inc. v. Zentis Sweet Ovations Holding LLC, No. 14-cv-2270,

2014 WL 5643683, at *5 (S.D.N.Y. Nov. 4, 2014) (allowing redaction of customer information

that is “not relevant to the parties’ legal dispute and implicate legitimate privacy interests”). And

as this court has noted: “[t]he protection of personal identifying information of non-parties is a

higher value that merits sealing.” Order, at 3; see also, In re Keurig Green Mountain Single-

Serve Coffee Antitrust Litig., 2023 WL 196134, at *4 (S.D.N.Y. Jan. 17, 2023).

Here, Plaintiffs only seek to redact nonpublic personal information from the four At-Issue

Exhibits, The At-Issue Exhibits are forensic review spreadsheets containing detailed findings of

breaches of representations and warranties (“R& Ws”). These R& W breach findings contain

various nonpublic personal information, including borrowers’ names, personal addresses, places

of employment, loan numbers, and at times the names of borrowers’ relatives and business

associates. Plaintiffs request sealing of this information because it is nonpublic personal

information of the very type that courts have held is “not relevant to the parties’ legal dispute and

implicate legitimate privacy interests.” SOHC, 2014 WL 5643683, at *5. Further, this nonpublic

personal information is related to individuals that are not parties to this litigation, and “[c]lear

harm could result from releasing that information to the public.” Order, at 3.

Plaintiffs respectfully request that the Court grant Plaintiffs’ motion to redact the

nonpublic personal borrower information found in the At-Issue Exhibits.

Honorable Louts L. Stanton

April 12, 2023

Page 3

Respectfully submitted,

AN :

CIghn A. Libra

vounsel for the National Credit Union

Administration Board as liquidating agent